Bouchillon v. Same Deutz-Fahr, Group et al

Filing 249

ORDER regarding Compensation to Special Master. Signed by District Judge Debra M. Brown on 4/3/18. (jla)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JUDY BOUCHILLON, Individually, and
on behalf of the Statutory Wrongful Death
Beneficiaries of Jim Bouchillon, Deceased;
and as Personal Representative of the
Estate of Jim Bouchillon
V.

PLAINTIFF

NO. 1:14-CV-135-DMB-DAS

SAME DEUTZ-FAHR, GROUP; SAME
DEUTZ-FAHR NORTH AMERICA,
INC.; DEUTZ AG; and SAME DEUTZFAHR DEUTSCHLAND, GMBH, d/b/a as
SAME Deutz-Fahr Germany

DEFENDANTS

ORDER
This products liability action is before the Court for allocation of payment of the invoice
submitted by Special Master Werner F. Ebke.
I
Relevant Procedural History
This case arises out of the fatal injury sustained by Jim Bouchillon while he was operating
a Deutz model 3006 tractor on August 17, 2013. Doc. #1 at ¶¶ 8–9. His wife and estate
representative, Judy Bouchillon, commenced this wrongful death product liability action against
three German corporations: SAME Deutz-Fahr, Group (“SAME Group”); Deutz AG (“Deutz”);
and SAME Deutz-Fahr North America, Inc. (“SAME America”). On June 15, 2015, after
approximately a year of discovery, Judy moved to amend her complaint to add an additional
defendant, SAME Deutz-Fahr Deutschland GmbH, d/b/a Same Deutz-Fahr Germany (“SAME
Germany”). Doc. #66. After receiving leave from the Court, Judy filed her amended complaint
on July 17, 2015. Doc. #86.

On July 8, 2015, Deutz moved for summary judgment, arguing that in 1991 and 1992, it
transferred “all assets, liabilities and risks of its tractor business” in a sale to KHD Agrartechnik
GmbH (a predecessor to the SAME entities). Doc. #81 at 1. On September 4, 2015, SAME Group
and SAME America responded in opposition to Deutz’s motion for summary judgment and filed
their own motion for summary judgment. Doc. #99; Doc. #100. The same day, Judy responded
to Deutz’s motion for summary judgment arguing, of relevance here, that “by virtue of the 1991
and 1992 agreements ... [SAME] Group and SAME Germany are legally responsible for product
liability claims related to … [the] tractor.” Doc. #102 at 4. Similarly, on November 23, 2015,
Judy, in response to the SAME defendants’ motion for summary judgment, argued that “[t]he 1992
[a]greement [e]ffectively transferred Deutz’s tractor related product liabilities to KHD
Agrartechnik.” Doc. #126 at 4. Also on November 23, 2015, Deutz filed a “Consolidated Reply
Memorandum in Support of its Motion for Summary Judgment and Memorandum in Support of
its Response in Opposition to [SAME] Group and [SAME] America[’s] ... Motion for Summary
Judgment.” Doc. #129. SAME Group and SAME America replied in support of their motion for
summary judgment on December 18, 2015. Doc. #139; Doc. #140.
On March 10, 2016, the Court, acting on motion of SAME America and SAME Group,
issued an order submitting the pending summary judgment motions to a special master. Doc. #162.
The order specifically called on the special master to answer certain questions related to German
law of transfers of liabilities. See id. at 8. The same day, the Court issued a “Notice of
Appointment of Special Master” which provided, in relevant part, that “[t]he Court will approve
compensation for all reasonable time spent, and after considering the factors in Rule 53(g)(3), will
allocate the burden of compensation among the parties as appropriate.” Doc. #163 at 3. To this
end, the Court noted that it would “take into account that the referred summary judgment motions

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primarily represent a dispute between the several German corporate Defendants, and that Plaintiff
has a reduced role in the necessity of a special master.” Id. at 3 n.1. The Court also stated it would
“consider … which parties sought the special master and which did not.” Id.
On June 17, 2016, the Court, after receiving from the parties four nominations for special
master, appointed Werner F. Ebke as the special master in this action. Doc. #188.1 Ebke filed a
report and recommendation with this Court on December 8, 2016. Doc. #215. On February 7,
2017, the Court, after receiving objections to the report and recommendation, resubmitted the
document to Ebke with instructions to answer additional questions. Doc. #225. Ebke resubmitted
the report and recommendation on April 17, 2017. Doc. #226. The Court ultimately adopted
Ebke’s resubmitted report and recommendation. Doc #232.
Sometime later, Ebke submitted to the Court an invoice for $20,050.00 for his work on the
case. No party has objected to the amount requested by the invoice. However, Deutz filed an
objection stating that “the SAME Defendants should be responsible for a significant portion of
th[e] invoice in an amount of fifty percent (50%) or more ….” Doc. #248 at 2. Judy filed an
objection requesting “that none of the Special Master’s fees be allocated to the Plaintiff.” Doc.
#247 at 2.
II
Analysis
Regarding a special master’s compensation, Federal Rule of Civil Procedure 53(g)(3)
provides that “[t]he court must allocate payment among the parties after considering the nature
and amount of the controversy, the parties’ means, and the extent to which any party is more
responsible than other parties for the reference to a master.”

1
On April 14, 2016, United States District Judge Sharion Aycock recused herself from this case and the case was
reassigned to the undersigned district judge.

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As this Court previously observed, the controversy Ebke was appointed to resolve
primarily involved a dispute between the various defendants regarding the application of the
German law of successor liability. Accordingly, the first factor weighs in favor of allocating a
higher burden of the invoice to the defendants.
With regard to the second factor, the parties have not introduced evidence showing the
relevant means of the corporate defendants. However, Judy has persuasively argued that her means
“are miniscule when compared to the financial means of the corporate Defendants in this case.”
Doc. #247 at 2. Under these circumstances, the Court concludes that the second factor weighs in
favor of a higher allocation to the defendants.
Finally, a review of the record reveals that a special master was appointed on motion of
SAME America and SAME Group, over the objections of Judy and Deutz. However, Ebke was
appointed to resolve a dispute implicated by arguments advanced by all parties. Accordingly, the
third factor weighs in favor of an allocation to all parties, with a higher share allotted to SAME
America and SAME Group.
Upon consideration of the relevant factors, the Court concludes that the $20,050.00 fee
should be allocated as follows: (1) $6,015 (30%) to be paid by SAME America; (2) $6,015 (30%)
to be paid by SAME Group; (3) $4,010 (20%) to be paid by SAME Germany; and (4) $4,010
(20%) to be paid by Deutz. The parties shall deposit the required fees with the Court no later than
fourteen (14) days from the issuance of this order.
SO ORDERED, this 3rd day of April, 2018.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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